Regina v K

The House of Lords allowed the appellant's appeal and held that, for an offence of indecent assault under section 14(1) of the Sexual Offences Act 1956 where the complainant is under 16, the prosecution must prove the absence of an honest belief by the defendant that the complainant was 16 or over. The decision applied the long-standing presumption that mens rea is an essential ingredient of criminal offences unless Parliament has clearly excluded it. The defendant's belief need not be reasonable, but the reasonableness (or lack of it) is relevant to the likelihood that the belief was genuinely held.

The court distinguished the specific statutory defences contained in sections 5 and 6 of the 1956 Act (the "young man's" statutory defence) and explained that those provisions operate differently and do not permit the same presumption to be displaced. The House relied upon and applied principles explained in Sweet v Parsley and B (A Minor) v Director of Public Prosecutions.

Background and facts:

• The appellant, K, a 26-year-old man of good character, was indicted for indecent assault contrary to section 14(1) of the Sexual Offences Act 1956 in respect of a girl C aged 14. His defence was that the sexual activity was consensual and that C had told him she was 16; he asserted he had no reason to disbelieve her.

Procedural history:

• A preliminary issue was heard at Chichester Crown Court before His Honour Judge Thorpe: whether the prosecution must prove that the defendant did not honestly believe the complainant to be 16 or over. Judge Thorpe ruled for the defendant, relying on B (A Minor) v DPP. The Crown appealed under section 35 of the Criminal Procedure and Investigations Act 1996. The Court of Appeal allowed the Crown's appeal and certified two questions of law. The House of Lords granted leave to appeal.

Issues framed by the House:

1. Whether a defendant is entitled to be acquitted of indecent assault under section 14(1) if he may hold an honest belief that the complainant was aged 16 or over.
2. If so, whether that belief must be held on reasonable grounds.

Court's reasoning:

• The House applied the presumption that mens rea is an essential element of statutory offences unless expressly or necessarily excluded. There are no express words in section 14 displacing that presumption and no compellingly clear implication to do so.
• The court examined the statutory history and earlier authorities, concluded that the 1956 Act is a consolidation statute composed of disparate origins, and held that the presumption applies to section 14 in the same way as in B (A Minor) v DPP. The effect is that the prosecution must prove the absence of a genuine (honest) belief as to the complainant's age.
• The House emphasised that the belief need not be reasonable (answering the second question in the negative) but that the reasonableness of the belief is relevant to its credibility.
• The court further held that sections 5 and 6 (and the statutory "young man's" defence) of the 1956 Act are to be treated differently because those provisions expressly define states of knowledge or exclude defences; the presumption cannot be applied to displace those specific measures.

Relief sought and disposition:

• The appellant sought to have the preliminary ruling that the prosecution must disprove an honest belief upheld and the appeal allowed. The House allowed the appeal and answered the certified questions: (a) yes, an honest belief that the complainant was 16 or over is a defence; (b) no, the belief need not be reasonable.

Wider implications:

• The Lords noted the anomalous and piecemeal legislative history of the sexual offences statutes, observed potential incoherence in the statutory scheme, and recommended careful parliamentary reconsideration in any recasting of the law on sexual offences.

Appeal allowed. The House held that section 14(1) of the Sexual Offences Act 1956 requires the prosecution to prove the absence of an honest belief by the defendant that the complainant was 16 or over. The presumption that mens rea is an essential element of a statutory offence applies; the defendant's belief need not be reasonable but reasonableness is relevant to credibility. Sections 5 and 6 of the 1956 Act are distinguishable and the statutory defences in those sections remain unaffected.

Preliminary issue decided for the defendant at Chichester Crown Court (His Honour Judge Thorpe). The Crown appealed under section 35 of the Criminal Procedure and Investigations Act 1996 to the Court of Appeal (Criminal Division), which allowed the appeal and certified two questions of law. Leave to appeal to the House of Lords was granted and the House allowed the appeal ([2001] UKHL 41).